Annex A
LAW COMMISSION[29]
DEFINITIONS OF MENTAL INCAPACITY AND BEST INTERESTS
MENTAL INCAPACITY
A person is without capacity if at the material
time he or she is:
| Incapacity | (i) unable by reason of mental disability to make a decision on the matter in question, or
|
| The person is: |
| (i) unable to understand or retain the information relevant to the decision, including information about the reasonably foreseeable
|
| Unable to make a decision by reason of mental disability
|
| consequences of deciding one way or another of failing to make the decision, or
|
| (ii) unable to make a decision based on such information (for example, some people may be unable to exert their will, whether because of delusions or compulsions, or because of susceptibility to influence, or any other reasons connected with their disability).
|
BEST INTERESTS
The Law Commission recommended that in determining a person's
best interest regard should be had to the following factors:
— the ascertainable past and present wishes and
feelings of the person concerned and the factors they would consider
if able to do so;
— the need to permit and encourage the person to
participate or improve his or her ability to participate as fully
as possible in anything done for and any decision affecting him
or her;
— the views of other people whom it is appropriate
and practical to consult about the person's wishes and feelings
and what would be in his or her best interests; and
— whether the purpose for which any action or decision
is required can be as effectively achieved in a manner less restrictive
of a person's freedom of action.
29
Law Commission (1995) Mental Incapacity Law Commission
no. 231 (HMSO). Back
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